Docket: IMM-6418-13
Citation:
2014 FC 1168
Ottawa, Ontario, December 3, 2014
PRESENT: The
Honourable Mr. Justice de Montigny
|
BETWEEN:
|
|
SANJOY SARKER
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA], seeking to set aside a decision dated September 4, 2013
rendered by Anthony da Silva [the Board Member] of the Immigration and Refugee
Board of Canada [the Board], Refugee Protection Division. He found that the
Applicant is not a Convention refugee nor a person in need of protection
pursuant to sections 96 and 97(1) of IRPA.
[2]
For the reasons that follow, I have come to the
conclusion that the decision of the Board must be quashed, as the Applicant was
not given an opportunity to address many of the concerns which eventually led
to the dismissal of his claim.
I.
Facts
[3]
The Applicant is a Bangladeshi citizen born on
November 25, 1982 in Faridpur, Bangladesh. He claims that he faces persecution
on the basis of religion. In support of that claim, the Applicant alleges the
following:
i)
The Applicant is part of the Hindu minority in
his home village of Madhukhali, in Gopalpur region.
ii)
Since 2005, the Applicant became involved in
organizing Hindu youths to defend the Hindu minority in his village. Among
other things, in 2007, he objected to the building of homes on Hindu temple
land.
iii)
On several occasions, he was the victim of
harassment and violence by Muslim fundamentalists. On January 10, 2010, while
rebuilding vandalized religious statues, Muslim extremists confronted him and
threatened serious consequences if he continued rebuilding the statues. After
this incident, he fled to the house of a friend in Dhaka. He later returned to
his village. On March 13, 2010, the Applicant protested after a Hindu girl was
raped and forced to marry her rapist and convert to Islam. As a result of this
protest, he was insulted, beaten and threatened. He then hid at his sister’s
house in Chandpur, but he soon faced harassment there as well. On July 6, 2010,
he was attacked while returning to his village. On January 21, 2011, members of
the Jamat (a Muslim political party) attacked him and a group of Hindu youths returning
home from a meeting. The Applicant and others submitted a written complaint
against Jamat and other Muslim groups, but the police refused to respond.
iv)
On February 23, 2011, the Applicant was arrested
without warrant and beaten. He was released on bail the next day, and no
charges were laid.
v)
On March 26, 2011, Jamat and Horkatul Jihad
“terrorists” attempted to kill him while he was returning home in a rickshaw.
The attackers followed him home, but he fled to Dhaka. The attackers visited
his family home in Madhukhali several times after this incident.
[4]
Following these incidents, the Applicant fled Bangladesh. A broker made arrangements for him to travel to Canada on a false passport. He
arrived in Canada on May 5, 2011 and made a refugee claim on May 25, 2011.
II.
The impugned decision
[5]
The Board rejected the Applicant’s claim. First,
the Board expressed concerns with the Applicant’s identity. Second, the Board
found that the Applicant was not credible due to inconsistencies in his
evidence. Finally, the Board found that there was an internal flight
alternative (IFA).
[6]
The Board’s concerns with respect to the
Applicant’s identity stem from the fact that the only document supporting his
identity is his birth certificate. Several reports by UNICEF, American and
Canadian officials indicate that Bangladeshi birth certificates are unreliable.
Later in the decision, the Board repeats the concern about the Applicant’s lack
of identity documents and the prevalence of fraud in Bangladesh. The Board also
found that the Applicant cannot corroborate his date of arrival in Canada because he arrived on a false passport. Therefore, the Board was “not entirely persuaded” of the Applicant’s identity,
Bangladeshi citizenship, or date of arrival in Canada.
[7]
The Board was also not convinced that the
Applicant had a well-founded fear of persecution. The Board noted
inconsistencies in three aspects of the Applicant’s story: (1) incidents
corroborated by newspaper articles; (2) the Applicant’s whereabouts in 2010-2011;
and (3) his arrest.
[8]
With respect to the incidents corroborated by
newspaper articles, the Board noted that the article describing the January 10,
2010 incident does not conclusively establish the identities of those involved,
and is slightly inconsistent with the Applicant’s story. The article says that
the people involved were “injured seriously” whereas
the Applicant’s account is that he was merely “injured”.
For the March 26, 2011 incident, the newspaper’s account is essentially the same
as the Applicant’s testimony, except that the article refers to an eyewitness,
whereas the Applicant’s testimony does not.
[9]
As for his whereabouts, the Applicant claimed in
his immigration interview on May 18, 2011 that he lived in Dhaka, Chandpur and
Faridpur after January 2010. However, his Personal Information Form (PIF) and
testimony describe incidents in his home village of Madhukhali, indicating that
he was present in Madhukhali during this period. The Board questioned why the
Applicant did not mention his time in Madhukhali in his immigration interview.
[10]
Regarding his arrest, the Applicant denied ever
having been arrested or detained in any country in his immigration interview
and refugee application form. However, the PIF, testimony and supporting documents
recount the Applicant’s arrest on February 23, 2011. The Board questioned the
authenticity of the arrest documents. In any case, the documents conflicted
with the Applicant’s story: the Applicant claims he was arrested merely for
making a complaint, but the documents say he was viewed as a catalyst for the
religious unrest. The Board also remarked that the Applicant was detained for
only one day, never charged, and released on bail.
[11]
Finally, the Board found that there was an
internal flight alternative. Its reasons on this issue are quite cryptic, and
amount to no more than the following paragraph:
[28] It would appear that whatever difficulties
the claimant may have experienced or friction that may have existed between him
and Muslim extremists has been localized around his home area. The panel,
therefore, finds that relocation to either Dhaka or Chittagong would be a
reasonable alternative for relocation and would not be unduly harsh.
III.
Issues
[12]
This application for judicial review raises two
issues:
A.
Did the Board breach procedural fairness with respect
to the identity and/or the credibility issues?
B.
Are the credibility and IFA findings reasonable?
IV.
Analysis
[13]
The standard of review is uncontroversial and is
agreed upon by the parties. On issues of procedural fairness, the standard is
correctness: Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at para 43, [2009] 1 S.C.R. 339; Mission Institution v Khela, 2014
SCC 24 at para 79, [2014] 1 S.C.R. 502; Juste v Canada (Citizenship and
Immigration), 2008 FC 670 at para 23. On the other hand, the standard of
review for the substantive issues of credibility and IFA is reasonableness: Aguebor
v Canada (Minister of Employment and Immigration), [1993] FCJ No 732 at
para 4 (FCA); Uygur v Canada (Citizenship and Immigration), 2013 FC 752
at paras 11-12; Karakaya v Canada (Citizenship and Immigration), 2014 FC
777 at para 9; Kayumba v Canada (Citizenship and Immigration), 2010 FC
138 at paras 12-13.
A.
Did the Board breach procedural fairness
with respect to the identity and/or the credibility issues?
[14]
The Applicant contends that the Board breached
his right to procedural fairness in raising doubts about his identity in the
decision, despite having advised counsel at the hearing that identity was not
an issue. I agree. Pursuant to Guideline 7, the Board sent to the Applicant a
screening form in advance of the hearing, which identified the issues it
considered central to the claim. The only issue that was marked under the
heading “Identity” was “Affiliation:
Political/Religious/Social/Family”; the other boxes under that heading (including
“Civil Status” and “Country
of Reference”) were not checked. When some subordinate boxes are checked
while others are not, the Applicant may infer that the unchecked boxes are not
at issue: Lin v Canada (Citizenship and Immigration), 2010 FC 108 at
para 31; Xiang v Canada (Citizenship and Immigration), 2013 FC 256 at
paras 15-17.
[15]
Even more importantly, the identity of the
Applicant was never raised as an issue throughout the hearing, and no question
was asked about the birth certificate and how it was obtained. Indeed, the
Board Member advised Applicant’s counsel prior to counsel’s oral submissions
that it had no concerns regarding the Applicant’s personal or national identity,
“so you do not have to make submissions on identity”:
Tribunal Record, p. 183. As a result, I have no hesitation in concluding that
it was not open to the Board to draw an adverse inference from the alleged
absence of documentary evidence to establish the Applicant’s identity: see Gomes
v Canada (Citizenship and Immigration), 2006 FC 419. Natural justice
requires that the Applicant be aware of the case to be met and be given the
opportunity to make relevant submissions on the material issues. The Board
breached the Applicant’s right to procedural fairness in stating that the
question of his identity was not an issue, only to raise it as a concern in
casting doubt on the Applicant’s credibility in its decision. Counsel for the
Respondent conceded as much at the hearing before this Court.
[16]
Where the parties differ, however, is with
respect to the consequences of this breach. Relying on Cardinal v Director
of Kent Institution, [1985] 2 S.C.R. 643, 24 DLR (4th) 44, counsel for the
Applicant argues that this denial of natural justice is so egregious that it
calls for the quashing of the decision. Counsel for the Respondent, on the
other hand, submits that nothing turns on this mistake and that it was purely
peripheral to the assessment of the Applicant’s credibility.
[17]
Having carefully examined the impugned decision,
I do not think it can confidently be said that this breach of procedural
fairness had no impact on the decision of the Board. The Respondent’s argument
may have been more compelling had the Board Member not dealt with the identity
issue after paragraph 16 of his decision. To the contrary, the Board’s identity
concerns appear to have permeated its credibility analysis and may have had a
material impact on the Applicant’s claim. At paragraph 23 of its decision, the
Board mentions the Applicant’s lack of personal identity documents in
questioning the authenticity of the newspaper articles and the arrest
documents. Most importantly, the Board explicitly links the identity concern
with the credibility analysis at paragraph 27 (“The absence
of documentation confirming both his identity and arrival in Canada is problematic and further contributes to an overall concern with the credibility of
the claim”). Accordingly, it cannot be said that the breach of
procedural fairness was not material and that there is no point sending the
Applicant’s claim back to the Board. This is not such a case as Mobil Oil
Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202,
111 DLR (4th) 1, where it could safely be said that the Board would most likely
reach the same decision if it were to re-examine the Applicant’s claim afresh. There
is every indication that the Board’s assessment of the Applicant’s identity
coloured its credibility analysis.
[18]
This error, in and of itself, is therefore
sufficient to quash the decision and to send it back to the Board for
re-determination. However, there is more. The Board also had a number of
concerns with respect to what were perceived as discrepancies between the
newspaper articles and the Applicant’s PIF and his testimony. The Board casts
doubt on the January 10, 2010 assault, for example, on the basis that the
newspaper article reports that the Applicant was “injured
seriously” while he testified at his hearing and noted in his PIF that
he had been “injured”. As for the March 26, 2011
attack, the Board acknowledged that the newspaper article and the Applicant’s
PIF were consistent, but questioned the credibility of the Applicant on the
grounds that the newspaper article identifies the presence of an eyewitness,
while there is no mention of this in the PIF. Further, the article reports that
the Applicant went to the police to complain about this incident, whereas there
is no mention of such complaint in either his PIF or oral evidence. Yet, none
of these concerns were put to the Applicant at the hearing.
[19]
I agree with the Applicant that when a hearing
is conducted by way of reverse-order questioning (i.e. the Board asking the
questions first and counsel questioning the applicant afterwards), the person with
the onus is no longer in control of the process and there is an increased
burden on the Board to ensure that issues which are determinative of the claim
are raised at the hearing: Gomes, above, at para 15; Veres v Canada
(Citizenship and Immigration), [2001] 2 FCR 124 at paras 32-34; Kerimu v
Canada (Citizenship and Immigration), 2006 FC 264 at paras 31-33.
[20]
In the case at bar, the Board did take control
of the hearing by putting its questions to the Applicant first. Yet the alleged
discrepancies between the newspaper articles and the Applicant’s story were
never put to him. If the Board thought that the difference between an “injury”
and a “serious injury” was significant, it should have asked questions about
it. The same is true about the alleged discrepancies between the second
newspaper article and the Applicant’s report of the March 26, 2011 incident. Not
only is it far from clear that the differences between the newspaper articles
and the Applicant’s PIF and testimony are significant (especially bearing in
mind that the Applicant had no control over what the journalists wrote), but he
was never provided any opportunity to explain away these differences. His
lawyer could certainly not be blamed for thinking that the Board, not having
questioned the Applicant on these issues, did not make much of the slightly
different accounts of the two incidents between the Applicant and the media report.
[21]
It may be that the onus was on the Applicant to
explain some of the other apparent discrepancies; for example, the differences
between his evidence and the immigration notes with respect to his places of
residence and whether he had been arrested or detained by the police. Even if
the Board did not see fit to raise these issues at the hearing, the
discrepancies are more obvious and striking and should have been addressed, proprio
motu, by the Applicant through questioning by his counsel. The same is not
true, however, of the alleged divergences between the Applicant’s version of
the events on January 10, 2010 and March 26, 2011, those being of much less
significance and not originating entirely from the Applicant himself.
B.
Are the credibility and IFA findings
reasonable?
[22]
I am also of the view that the Board’s finding
on IFA is not reasonable. The reasons are very brief and superficial, and they
read more like a conclusion than like true reasons. It is quite simply
impossible to determine the line of reasoning upon which the Board reached its
conclusion.
[23]
The Board had to be satisfied, on a balance of
probabilities, that there was no serious possibility of the claimant being
persecuted in the proposed IFA and that, in all the circumstances, including
the circumstances particular to the Applicant, the conditions in the proposed IFA
were such that it was not unreasonable for the claimant to seek refuge there. The
Applicant testified that his life was in danger from the Muslim extremists who
had been enquiring as to his whereabouts. It was also submitted that charges
have been laid against him and are still pending. Finally, counsel stressed
that as a Hindu, he would be vulnerable and subject to persecution and
discrimination throughout the country. None of these arguments were mentioned,
let alone addressed, by the Board Member. Accordingly, the Board’s
determination that the Applicant could relocate in Dhaka or Chittagong cannot
stand.
V.
Conclusion
[24]
Having found that the Board breached its duty of
procedural fairness in the assessment of the Applicant’s identity and
credibility, and having further come to the conclusion that its conclusion with
respect to the IFA cannot stand, the application for judicial review is
allowed, the decision must be quashed and the Applicant’s claim must be
remitted to another panel of the Board for re-determination. There is no need,
having so found, to assess the reasonableness of the Board’s credibility findings.
No question is certified.
Email this Content